89 W. Va. 352 | W. Va. | 1921
The alternative writ, in accordance with the prayer of the petition, commanded the Honorable James French Strother, Judge of the Criminal Court of McDowell County, to require and order Lee Pendleton, official court reporter of said court, and the said Pendleton to deliver and turn over to.petitioners and relators or- their counsel, a copy of the evidence and statements in his possession, taken by him upon an alleged investigation, begun upon the order of the said court, and continued before the prosecuting attorney of said county, with the aid of said Pendleton acting as such court reporter or
The right of the petitioners to demand of the court and its reporter copies of said evidence and statements is evidently predicated upon the provisions of chapter 98, Acts 1921,, relating to the appointment of shorthand reporters, defining their duties and the uses to which the records made by them may be put. The authority-given the court by section one of the act is to employ such reporter “to take and report, under such regulations as said judges, or any of them, may prescribe, the proceedings had and the testimony given in any case, either civil or criminal, or any other proceeding had in such court, including the taking of testimony before the grand jury of such court for the use of the- prosecuting attorney of of such court, and in proceedings before the judge of such court in vacation, and otherwise to aid the judge in the performance of his official duties.”
Section 3 of said act provides: “Said reporter shall furnish, upon request, to any party to a case, a copy of the testimony or other proceedings, written out in longhand or typewriting, and shall certify the same as being correct, and shall be paid therefor.”
The return of the judge, supplemented by that of the reporter, denying the right of the petitioners to copies of the evidence and statements referred to, is that such evidence and statements were not taken before respondent Strother, or in open court, or upon any official or preliminary hearing held by him, and were not taken even in the presence of respondent outside of any official hearing, and that such evidence and statements were regarded by respondent as the private information of the prosecuting attorney, and for his use upon the trial of the petitioners for the alleged murder of said decedents.
As will be observed, the authority of the court is to appoint reporters to take and report “the proceedings had and the testimony given in any case, either civil or criminal, ’ ’ etc. And the right to demand and have a copy of the testimony is
The. facts disclosed by the petition and the returns are that during the trial of the deceased for an offense, and during the recess of the court, Hatfield and Chambers were shot and killed near the court house, and on reconvening, the court directed the sheriff to bring into court all those who were present and witnessed the shooting, and also directed the prosecuting attorney to examine the witnesses, which he did in the absence of the judge, taking the evidence before the court reporter, who made and furnished copies thereof to the prosecuting attorney and tó another attorney, who had been assisting in the defense of Hatfield and Chambers. On the report of the prosecuting attorney that there was sufficient evidence to justify the holding of petitioners to answer any indictment that might be preferred against them by the grand jury, the petitioners voluntarily appeared on the following day, and without demanding a preliminary hearing, voluntarily entered into a recognizance with sureties for their appearance at the next term of the court to be held in said county.
The contention of petitioners is that the proceeding before the prosecuting attorney, conducted by order of the court, was, or amounted to, a preliminary hearing, to which they were parties, and as such entitled to the relief sought by mandamus. It could not possibly be a preliminary hearing of the charges of murder made against them, for such preliminary hearing could neither be had before the judge, the court, nor the prosecuting attorney. The statute nowhere authorizes preliminary hearings before the judge or prosecuting attorney. By section 1, chapter 156 of the Code, the judge in vacation or term time, or a justice, may issue process for the apprehension of a person charged with an offense, and section 2 thereof says, that on complaint to such officers, and examination of the witnesses and good reason to believe
The right to a preliminary examination is not a common-law right; 16 Enc. Pl. & Pract. 828; 16 C. J. 322; and may be waived by the accused. State v. Stewart, 7 W. Va. 731, and cases cited; Butler v. Commonwealth, 81 Va. 159; 8 R. C. L. 89. By voluntarily appearing and asking the court to admit them to bail, we think the petitioners ^waived a preliminary examination, at least for the time being. State v. Strauder, 8 W. Va. 686. Wherefore the examination by the prosecuting attorney, though at the instance of the'court, not authorized by law, could not convert that proceeding into a preliminary examination, and give the petitioners a right to demand of the reporter or of the judge copies of the testimony and proceedings thus conducted.
Our conclusion is to deny the peremptory writ.
Peremptory writ refused.